Opinion
2015–11047 Index No. 28844/09
12-05-2018
MINELLI CONSTRUCTION CO., INC., Respondent, v. NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, Appellant.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Fay Ng and Jonathan A. Popolow of counsel), for appellant. Melvin J. Kalish, PLLC, Mineola, N.Y. (Joshua S. Hackman of counsel), for respondent.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Fay Ng and Jonathan A. Popolow of counsel), for appellant.
Melvin J. Kalish, PLLC, Mineola, N.Y. (Joshua S. Hackman of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., WILLIAM F. MASTRO, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
In an action to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Queens County (Martin J. Schulman, J.), dated September 11, 2015. The order granted the plaintiff's motion to confirm the report of a referee (Elizabeth Anderson, Ct. Atty. Ref.) dated December 18, 2014, made after a hearing, and denied the defendant's cross motion to reject the report.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action to recover damages for breach of contract. Following commencement of the action, the Supreme Court referred the matter to a referee to hear and report. After a hearing, the referee issued a report and recommended that the court find that the defendant breached its contract with the plaintiff. Thereafter, the plaintiff moved pursuant to CPLR 4403 to confirm the report, and the defendant cross-moved to reject the report. The court granted the plaintiff's motion and denied the defendant's cross motion. The defendant appeals.
"Generally, a referee's report should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility" ( Doe v. Yisroel, 131 A.D.3d 1097, 1098, 16 N.Y.S.3d 754 ; see IG Second Generation Partners, L.P. v. Kaygreen Realty Co., 114 A.D.3d 641, 642, 980 N.Y.S.2d 479 ; Last Time Beverage Corp. v. F & V Distrib. Co., LLC, 98 A.D.3d 947, 950, 951 N.Y.S.2d 77 ; Spodek v. Feibusch, 55 A.D.3d 903, 903, 865 N.Y.S.2d 575 ). "A referee's credibility determinations are entitled to great weight because, as the trier of fact, he or she has the opportunity to see and hear the witnesses and to observe their demeanor" ( Matter of Piller v. Schwimmer, 135 A.D.3d 766, 769, 22 N.Y.S.3d 572 [internal quotation marks omitted]; see Galasso, Langione & Botter, LLP v. Galasso, 89 A.D.3d 897, 898, 933 N.Y.S.2d 73 ). Here, the referee's finding that the defendant breached its contract with the plaintiff is substantially supported by the record (see Consedine v. Portville Cent. School Dist., 12 N.Y.3d 286, 879 N.Y.S.2d 806, 907 N.E.2d 684 ; Beal Sav. Bank v. Sommer, 8 N.Y.3d 318, 324, 834 N.Y.S.2d 44, 865 N.E.2d 1210 ; CNR Healthcare Network, Inc. v. 86 Lefferts Corp., 59 A.D.3d 486, 489, 874 N.Y.S.2d 174 ; Slamow v. Del Col, 174 A.D.2d 725, 726, 571 N.Y.S.2d 335, affd 79 N.Y.2d 1016, 584 N.Y.S.2d 424, 594 N.E.2d 918 ; Gottlieb v. 180 Hartsdale Assoc., 119 A.D.2d 542, 543, 500 N.Y.S.2d 715 ). Accordingly, we agree with the Supreme Court's determination to grant the plaintiff's motion to confirm the referee's report and to deny the defendant's cross motion to reject the report.
SCHEINKMAN, P.J., MASTRO, BARROS and CONNOLLY, JJ., concur.